Supremes decline Schiavo appeal

The Supreme Court on Thursday refused to order Terri Schiavo’s feeding tube reinserted, rejecting a desperate appeal by her parents to keep their severely brain-damaged daughter alive.

The decision, announced in a terse one-page order, marked the end of a dramatic and disheartening four-day dash for her parents, Bob and Mary Schlindler, through the federal court system.

Justices did not explain their decision, which was at least the fifth time they have declined to get involved in the Schiavo case.

There was no indication of how the individual justices voted.

The feeding tube that has been keeping Schiavo alive at a hospice in Pinellas Park, Fla., was removed last Friday. Doctors at the time said that unless it is reinserted she will die in a week or two.

The Schindlers are continuing legal fights in federal and state courts in Florida, but the Supreme Court appeal was considered their best chance of getting her tube reconnected.

Senate Majority Leader Bill Frist, who was a principal figure in the last-ditch effort by Congress to intervene on Schiavo’s behalf, said he the high court rendered its decision “despite a compelling case for reexamination of the medical evidence.”

“It is a sad day for her loving family and for their innocent and voiceless daughter,” said the Tennessee Republican who played a key role in securing passage of legislation last weekend to give her parents access to the federal courts.

House Majority Leader Tom DeLay, Texas, and Rep. James Sensenbrenner of Wisconsin, chairman of the House Judiciary Committee, also expressed disappointment.

In a joint statement, they said they “strongly believe that the court erred in reaching its conclusion and that once again they have chosen to ignore the clear intent of Congress.”

The two lawmakers said that “federal remedies have been exhausted,” and urged Florida Gov., Jeb Bush and the Florida Legislature to seek new ways to intervene.

But Charles Fried, a Harvard law professor and former solicitor general during the Reagan administration, said: “It’s totally unsurprising. I don’t know how many courts have to turn them down for the message to come across that there is no legal case.”

The high court’s decision was the latest in a string of losses in state and federal courts for the Schindlers, who say their 41-year-old daughter faces an unjust and imminent death based on a decision by her husband to halt nourishment without proof of her consent.

The Schindlers’ emergency high court filing also argued that Congress intended for Schiavo’s tube to be reinserted, at least temporarily, when it passed an extraordinary bill last weekend giving federal courts authority to fully review her case.

In his response, Michael Schiavo urged justices not to intervene because his wife’s case already has been endlessly litigated and at each turn courts have sided with him.

His filing also argued that Congress violated the Constitution when it passed the bill because the action was improperly intended to overturn state court rulings on the matter.

“That is not an exercise of legislative power, but trial by legislature,” the filing said.

The Schindlers’ appeal went first to Justice Anthony Kennedy, a Reagan appointee who has staked a moderate position on social issues. Kennedy has responsibility in the first instance for cases emanating from the Southern district that is home to the 11th U.S. Circuit Court of Appeals in Atlanta. He referred the Schiavo case to the full nine-member court.

The court’s decision was expected. Not only had justices repeatedly declined to intervene in the Schiavo case on prior occasions, but they routinely defer to state courts on family law issues. Judges in various Florida courts have sided with Schiavo’s husband in the 15 years since she suffered brain damage.

The issue before the high court was whether Schiavo’s tube should be reinserted while her case is fully reviewed in the lower courts.

Justices could have ruled in favor of the parents if they had found a “substantial likelihood” the Schindlers would win on the merits or that Congress intended for Schiavo to remain attached to a feeding tube during the federal court review called for in the bill passed last weekend.

The court could also have sided with the parents if, as the Justice Department argued in a “statement of interest” in the case, a federal law known as the All Writs Act were interpreted to empower federal courts to temporarily grant the emergency request – regardless of the merits of the case – simply to protect their “jurisdiction.”

The federal appellate court in Atlanta rejected those claims Wednesday.

A three-judge panel ruled 2-1 that the parents “failed to demonstrate a substantial case on the merits of any of their claims” that Schiavo’s feeding tube should be reinserted immediately. About 13 hours later, the full 12-member court voted to deny the parents’ request to reconsider the ruling.

The Supreme Court has ruled that a terminally ill person in a “persistent vegetative state” has a right to refuse life-sustaining treatment. But the 5-4 decision authored by Chief Justice William H. Rehnquist also said that right was not unrestricted, holding that a state may impose a high legal burden on a family to show a patient had actually consented.

That 1990 ruling returned the case of Nancy Cruzan to Missouri state court, which eventually determined the comatose woman indeed had indicated she wanted to die as her parents argued.

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